At the close of its term last month, the Supreme Court granted certiorari in Masterpiece Cakeshop, one of the handful of same-sex wedding cases that have been percolating in the lower courts for the past few years. In the case, a Colorado cake shop declined to design and bake a wedding cake for a same-sex couple. Designing and baking such a cake, the shop’s owner said, would violate his religious convictions.
The Colorado Civil Rights Commission ruled that the shop owner’s refusal violated the state’s public accommodation law, which prohibits discrimination on the basis of sexual orientation. The shop owner argues that he doesn’t discriminate on the basis of sexual orientation—he is happy to sell cakes to gays and lesbians—but that requiring him to design and bake a cake for a same-sex wedding would violate his constitutional rights, specifically, his free speech rights (by compelling him to express approval for conduct he disapproves) and his free exercise rights (by requiring him to engage in conduct that violates his religious convictions).
The lower courts have not been sympathetic to claims like the shop owner’s. Earlier this year, in Arlene’s Flowers, the Washington Supreme Court unanimously rejected an appeal by a florist who declined to sell wedding flowers to a same-sex couple because of her religious convictions. A few years ago, in Elane Photography, the New Mexico Supreme Court rejected an appeal from a wedding photographer who declined to work at a same-sex wedding.
The US Supreme Court has not yet ruled on the question, and Masterpiece Cakeshop will no doubt be a close decision. The relevant case law is sufficiently complicated and indeterminate to allow a holding either for or against the shop owner. Even Employment Division v. Smith, the famous 1990 decision that held there is no constitutional right to a religious accommodation in most circumstances, is full of exceptions and tangles. Whatever legal formulas the Court uses to explain itself, it seems to me, its judgments in religious accommodation cases depend more on intuitions than on doctrine—and the intuitions themselves depend, fundamentally, on what seems plausible in the wider culture.
In this regard, readers may be interested in a recent experience I had in my law and religion class. For the past few years, I have covered the same-sex wedding cases, but I have always had trouble getting students to see both sides of the argument. The students are so committed to the rightness of same-sex marriage that they don’t understand why anyone could in good faith object to participating in one—or, least, they’re not comfortable saying so in class. So, this year, I decided to change the hypothetical, to give the students a situation where the objector’s position might seem more plausible.
Suppose, I asked the students, an observant Jew has a florist shop. One day, a customer, who is also Jewish, comes to the shop to say she’s getting married and would like the florist to do the wedding. “That’s wonderful,” the florist says. “Where will you get married?” The customer replies that the wedding will be at a local nondenominational church, because her fiancé is Christian, and she, the customer, isn’t very observant. The florist thinks about it and then says, “I’m so sorry, but I can’t do your wedding. It’s nothing personal; I’m sure your fiancé is a fine person, as are you. It’s just that as an observant Jew I don’t approve of interfaith weddings. For our community to survive, we must avoid intermarriage and assimilation. Please understand. There are many other florists who can do your wedding. I’ll even suggest some. But I can’t, in good conscience, participate, myself.” What result?
In posing this hypothetical, I was not so interested in how the case would come out under current law. Rather, in good law-school fashion, I was trying to show the students that these are complicated questions and that they need to consider both sides. Much to my surprise, the students were uniformly unsympathetic to the florist. There should be no right to decline services in this situation, they told me. The florist was not acting reasonably and in good faith.
Now, multiculturalism comes very naturally to kids in this generation—they all support diversity. So, I pressed them. Didn’t they see that genuine diversity requires respect for difference, that difference implies boundaries, and that boundaries necessarily exclude? Couldn’t a member of a minority community believe, in good faith, that her community faced assimilation and decline to act, in her commercial dealings, in a way that promoted it? Wasn’t that a concern worthy of respect? No, they told me. The florist in my hypothetical case should have no right to turn away the interfaith couple.
Conservatives often assume that controversies like Masterpiece Cakeshop reflect changing sexual norms and an intolerance of resistance. That’s correct, in part; one definitely senses a “you-lost-get-over-it” sentiment on the other side. And yet, the students’ reaction to my hypothetical case suggests that something else is going on as well, that the dispute is not about sexuality as such. Rather, it’s about not allowing people to draw moral distinctions that exclude others and hurt their feelings, no matter what the justification. That’s what the florist was doing in my hypothetical case—and that, I think, was what bothered the students.
Tocqueville saw this coming long ago. Democracies, he wrote, prize equality above all other values. Their “passion for equality,” he observed, is “ardent, insatiable, incessant, invincible.” It is not simply a matter of assuring every person equal rights under law. Tocqueville believed, in Patrick Deneen’s words, that democracies inevitably seek to do away with “any apparent differences” among people—“material, social, or personal.” No distinctions are to be tolerated. In fact, Tocqueville wrote that democratic societies have an inevitable tendency toward pantheism, since, in the end, even a distinction between Creator and created becomes intolerable.
If I’m right that, in the long run, social intuitions drive the law, and if I’m also right that my students’ reaction reflects something about social intuitions in America today, then litigants like the shop owner in Masterpiece Cakeshop will have an increasingly hard time prevailing in American courts. As the concept of equality inevitably extends further and further, distinctions like the one he is trying to maintain will appear more and more rebarbative. People will fail to empathize at a basic level.
The shop owner may well win in Masterpiece Cakeshop. As I say, the issues are complicated and the Court’s case law is indeterminate. He has a good claim. And, practically speaking, much depends in these cases on who is doing the judging, which suggests that Supreme Court confirmations will become even more acrimonious than they already are. But, in the long run, claims like the shop owner’s will meet greater and greater resistance in our culture and our courts. And sexuality may have little to do with it.